USCIS Overturns 'Early Bird Gets the Worm' Rule in H-1B Program

By David North on April 29, 2011

Throughout our lives we are told that "that the early bird gets the worm," that it is a good idea to be "early to bed and early to rise," and that a "stitch in time saves nine," but USCIS has now overruled those mottos in the H-1B program.

It now is about to impose a set of rules in that foreign high-tech worker program to, in effect, make life easier for the late birds, the late risers, and the non-stitchers among the greedy employers who use the H-1B program to lower their labor costs, and deny jobs to American workers.

You might see it as a campaign to reward, or at least minimize the penalties on, the worst of the worst of these employers.

USCIS, of course, does not see it this way. It is, to that agency, another "streamlining" of the migration process; is saves money, in their eyes, not for the government, but for fat cat employers of foreign workers, and that, to USCIS, is a good thing. That making the H-1B program still more popular among employers, and thus used more extensively, and thus denying more jobs for resident workers (both citizens and green card holders) is beside the point.

I came to this realization today when I wrote comments to the Federal Register about a nuance of the H-1B program that is described here. (Since the deadline for comments is May 2, my own response was not exactly in the early bird category.)

To back up a bit, this is a large foreign worker program, probably involving, at any one time, 650,000 workers or so as noted in an earlier blog. Given this huge impact on the American labor market, there are totally justifiable, congressionally-imposed annual numerical ceilings on the issuance of new H-1B visas (but not extensions, or transfers, of old visas.) There is a mainline ceiling of 65,000 and another ceiling of 20,000 for aliens with U.S. advanced degrees; in many years these ceilings are reached before the end of the fiscal year.

When the ceilings were reached in the past, USCIS accumulated the late filings, and ran lotteries to see which applications among those filed by employers would get the visas. Corporations grumbled that while they got some of the workers they wanted under these circumstances, they did not get them in exactly the order they wanted them. It was as if part of the NFL draft involved the rolling of dice, against the wishes of the owners.

USCIS, always eager to please the users of foreign workers, figured out a way, at presumably a considerable expense to the taxpayers, to run the lottery ahead of time, thus giving the employers the right to rank the workers they wanted, and to avoid paying immigration lawyers for filing applications that would go to waste. The product of this thinking is in the government announcement cited above. The agency thought so highly of its own handiwork that they managed to talk the White House into announcing the proposal.

Some thoughts about this subject:

First, it uses government money to save corporate funds and to make a program that is harmful to U.S. workers more popular with employers, and thus more used.

Second, it takes money from well-paid immigration lawyers, and gives those moneys to ultra-prosperous corporations; it is one of the few times in life when one can sympathize with the lawyers.

Finally, it rewards, or at least minimizes the penalties on, the laggards among the greedy employers. They would have no problems with the ceiling had they simply done their homework on time, and filed early in the H-1B season.

So USCIS is among other things being nice to the laziest, the least farsighted, of a not-very-attractive population, the users of the H-1B program. I assure you, that no matter how carefully you read the lengthy USCIS and Federal Register announcements of this matter, there will be no discussion of the simple merits of filing your papers promptly.